Anyaegbu Ojiegbe & Ors V. Gabriel Okwaranyia & Ors (1962)
LawGlobal-Hub Lead Judgment Report
BRETT, F.J
This is an appeal by the defendants against the judgment of the High Court of Eastern Nigeria awarding the plaintiffs a declaration of title to a piece of land, £10 damages for trespass and an injunction restraining further acts of trespass. The four respondents represent the four sub-families of the Abukwa family of Umuobom town in Orlu Division of Owerri Province, and the three appellants belong to three families of Okohia Isiekenesi in the same Division. The disputed area is bounded on the North by the Okwa stream; Umuobom Market lies to the north of the stream and Isiekenesi to the South, both of the stream and of the land in dispute. The appellants admit that the Abukwa family owns a portion of land on the Isiekenesi side of the Okwa Stream, North-West of the area now in dispute, but they say that it came into the possession of the family in special circumstances and is in fact an exception which proves the general rule for which they contend, namely that the Okwa stream is the natural and normal boundary between the two communities.
After the evidence in the High Court had been concluded and before the final addresses of counsel, the trial Judge viewed the land, accompanied by counsel on both sides. The record contains no separate note of what he observed, and no further oral evidence was taken, but in their final addresses counsel on both sides made free reference to the view and in his judgment the Judge relied to some extent on what he had observed in rejecting the case for the appellants. Having regard to their acquiescence in the course followed by the Judge, and to the fact that their counsel invited the Judge to make use of his own observations we did not allow the appellants to argue a ground of appeal which complained that the Judge did not comply with the principles laid down for the conduct of a view in a criminal case in R. v. Dogbe, 12 W.A.C.A. 184. I will only add that in considering the conduct of a view in a civil case the judgment of the West African Court of Appeal in Nwizuk v. Eneyok, (1953) 14 W.A.C.A. 354 and the judgments given in the Court of Appeal in England in Buckingham v. Daily News Ltd. (1956) 2 Q.B. 534 would seem more to the point than that in R. v. Dogbe.
The grounds of appeal argued were directed to two main points. First it is said that the Judge came to a wrong conclusion in holding that the Abukwa family owned any land to the South of the Okwa stream apart from the portion already referred to, and in particular that he made a wrong use of evi-dence given by two witnesses from Okohia in arbitration proceedings concerning that portion of land which took place between the respondents and a third family in 1932. Secondly it is said that even if it is established that the Abukwa owned other land to the South of the stream the southern boundary is not proved with sufficient precision to justify the grant of a declaration of title.
In rejecting the appellants’ story that the Okwa stream was the normal boundary, the Judge relied on evidence of various kinds. Two of the plaintiffs themselves gave evidence and in addition to the surveyor who made the plaintiffs’ plan, Exhibit K, five other witnesses were called. Two of these were from other families of Umuobom and they said that the lands belonging to their families extended across the Okwa stream and had a boundary with Isiekenesi land south of the stream, which the appellants had disclaimed any intention of challenging, on being asked about it after the institution of the present proceedings. The other three, who included one member of the first appellant’s own family, said that they farmed part of the land in dispute as tenants to the respondents. There were in addition the facts which the Judge observed himself when he viewed the land. The Okwa stream, which he had imagined from the plans and evidence to be a fair sized river, he described as “an insignificant stream, shallow, slow-flowing and overgrown with vegetation”; this was in October, when it could hardly be said that the water would be at its lowest.
The two jujus, on the presence of which the appellants had relied as proof of their ownership, appeared to be of recent construction, and the only sign of the old ruins marked on the appellants’ plan as two houses was some red earth which formed part of the farm land.
This was a substantial body of evidence in support of the respondents’ case and if the Judge had relied on it alone it would have been hard to say that the judgment was against the weight of evidence. However, he also took into consideration the evidence given in the arbitration proceedings of 1932 by two persons, now dead, who at that time were the heads of the families of the first and second appellant. One of them. Okwara Uzuegbu, said “The land on both sides of Okwa stream belong to Abukwa people. My people and I farm on this land by their permission.” The other, Onuohu Ndukwe, said “They (Abukwa Umuobom) own the land over the Okwa stream oppo-site Umuoshi and our people from time immemorial …… Abukwa people own a large area of land on our own side of the Okwa stream. Our boundary with them is at the stream Iyioma up to its junction with Oriabia. The land on both sides of the Oriabia stream belongs to Abukwa.”
The evidence given by these two witnesses was relevant in the present proceedings either under s. 20(3)(b) of the Evidence Act, as admissions by persons from whom the parties to the suit have derived their interest in the subject matter of the suit, or under s. 33(c) as statements against proprietary interest made by persons now dead. Section 26 of the Act provides that admissions are not conclusive proof of the matters admitted, but may operate as an estoppel. It cannot be suggested that the present admissions operate as estoppels, but I do not consider that the trial Judge treated them either as conclusive proof or as estoppels; what he said was that the arbitration was of great importance and that two members of the Okohia stated categorically before any trouble arose between them and the Abukwa that land which is a substantial part of the land in dispute belonged to the Abukwa, and I can see nothing to criticise in that. I also agree with the Judge in being satisfied that the witnesses gave their evidence with the full knowledge and consent of the Okohia people; it is incon-ceivable that the head of a family could give evidence disclaiming ownership of part of the family land without the facts becoming known at once and arousing the most vigorous protests. There is nothing in the submission that since the appellants’ families were not parties to the arbitration what the witnesses said cannot be used as an admission against their families, and I see no ground for holding that the Judge used the evidence of these witnesses in such a way as to vitiate his finding that the respondents owned land to the South of the Okwa stream.
If that finding is upheld the question remains whether the southern boundary was sufficiently defined. In my opinion it was. Much was made in argument of the fact that the boundary alleged by the respondents is marked by trees of different kinds, and of the statement made under cross-examination by the respondents’ surveyor. “If boundary is by consent the parties can use any trees. If not the boundary would be shown by the same tree all along”. The argument overlooks the fact that in 1932 the boundary was not disputed and that the first disputes did not arise until about 1940, since when there has been intermittent litigation between members of the two families, and a boundary line could not have been marked by newly-planted trees of the same kind until the issue as to title was settled. It is also said that the evidence of the first respondent as to the boundary is at variance with the plan, Exhibit K, but I do not regard the discrepancies as of any significance and I would uphold the Judge’s finding that the boundary was proved to be as claimed.
On these grounds I would dismiss the appeal with costs assessed at 20 guineas.
Other Citation: (1962) LCN/1008(SC)
